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Minority and Guardianship-Muslim minor represented in arbitration proceedings and in Court by brother who was not appointed guardian by Court-Award and decree on award are vitiated. Limitation Act, 1908, ss. 18 and 144-Renunciation of rights by co-owners in property in favour of one co-owner under wrong impression that it was endowed property-Property later discovered to be Matrooka property-Limitation for filing suit is governed by s. 144 Limitation Act 1908-Where knowledge of right to partition is held back by fraud limitation is extended under s. 18. Adverse possession-Possession by one co-owner is not by itself adverse to other co-owners-These must be open denial of title to the parties entitled to the property by excluding and ousting them-Possession is not adverse to parties not aware of their rights. =Shah Abdul Rahim was Sajjadanasheen of a Dargah and Khankah in Hyderabad. He had four sons and two daughters. After his death in 1905 he was succeeded as Sajjadanasheen by his eldest son Abdul Hai Shah Abdur Rahim left Matrooka property apart from the properties appertaining to the Dargah and Khankah. The matter of the partition of Matrooka properties was referred to arbitrators. The appellant who was Abdur Rahim’s youngest son was a minor at the time and was represented in the arbitration proceeding by his brother Nooruddin. The properties Exhibits B-1 to B-10 were acknowledged by the parties before arbitrators to be in the possession of Abdul Hai as Dargah and Khankah properties and any right or claim to them was renounced by Abdul Hai’s brothers and sisters. The arbitrators gave their award on August 1, 1908 partitioning the properties. On August 13, 1908 there was a decree in the Darul Khaza Court confirming the aforesaid award. The properties B-1 to B-10 thereafter remained in the possession of Abdul Hai. In 1927 Abdul Hai got an adjudication from the Nizam’s Government that the Dargah and Khankah properties consisted only of two villages and that properties B-1 to B-10 were not Dargah and Khankah properties. In 1938 Abdul Hai wrote a letter to the Nizam’s government again asserting that properties B-1 to B-10 were his personal properties. The appellant filed a suit on 24th July 1941 for setting aside the decree dated. August 13, 1908, passed by the Darul Khaza Court and for partition of the Matrooka properties left by his father including properties B-1 to B-10. He impeached the award and the decree on the ground that he was not represented by 1 lawful guardian. He claimed that the award and decree should be avoided because they were based on the wrongful representation of Abdul Hai that they were Dargah and Khankah properties. The trial court decreed the suit holding : (1) that the award and decree in question were obtained by fraud; (2) that the letter written by Abdul Hai in 1938 showed that he was aware of the Matrooka character of the properties but kept this fact from his brothers and sisters; (3) that the appellant 73 5 came to know the facts from the said letter of 1938 and the suit was not therefore barred by limitation. The High Court in appeal held (1) that the appellant was a minor and therefore reference to the arbitration and the award thereon were void; (2) that the decree passed by the Damlkhaza Court was not a nullity since the appellant did not file his suit within three years after attaining majority; (3) that the decree was not obtained by fraud; (4) that Abdul Hai asserted in 1927 that the properties in question were his personal properties and this assertion of title adverse to the appellant and his brothers and sisters became known to them in 1927 and for this reason also the suit was barred by limitation. in’ appeal by certificate to this Court, HELD: The appeal must be allowed, (i) The minority of the appellant was a fact found by the trial court and the High Court. The appellant’s brother who represented him in the arbitration and court proceedings was not a legal guardian, nor was he appointed by the Court. The relinquishment of property by Nooruddin on behalf of the minor was not binding on the minor whose interests were not protected. The arbitration proceedings, the award and the decree of the Darul Khaza Court on the award were therefore void. [740 D, 741 E-F] Mohd. Amin & Ors. v. Vakil Ahmed & Ors, [1952] S.C.R. 1133 and Imambandi v. Mutsaddi, 45 I.A. 73, referred to.’ (ii) The estate’ of a deceased Mohammedan devolves on his heirs at the moment of his death. The heirs succeed to the estate as tenants in common in specific shares. When the heirs continue to hold-the estate as tenants in common without dividing it and one of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and Art. 114 of Sch. 1 to the Limitation Act 1908 would be the relevant Article. [741 H, 742 A] (iii) The cause of action for partition of properties is a perpetually recurring one’. In Mohammedan Law the doctrine of partial partition is not applicable because the heirs are tenants in common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. In the present case the suit was for partition of properties which were by consent of parties treated as Dargah and Khankah but which were later discovered to be Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties could not stand and the entire partition had to be reopened by reason of fraud in the earlier proceedings. [746 G-747 B] Monsharam Chakravarty & Ors. v. Gonesh Chandra Chakravarty & Ors., 17 C.W.N. 521, referred to. (iv) The decree of the Darul Khaza Court could not be an obstacle to, the claim of the appellant for partition of the properties, because the properties were admittedly not Dargah and Khankah properties but Matrooka Properties. If all parties- proceeded upon a basis that these , were Dargah and Khankah properties and that basis is wiped out by the adjudication by the Government of the Nizam, the parties are restored to their position as heirs to the Matrooka property. The award and the decree by reason of evidence of facts discovered since the judgment and the decree of the Darul Khaza Court could not be allowed to stand because the effect of the discovery of the facts was to make it “reason- ably probable that the action will succeed”. [744 H-745 B] 1100Sup CI/72 73 6 Birch v. Birch, [1902] Probate Division 131, referred to. (v) When a plaintiff has been kept from knowledge by the dependent of the circumstances constituting the fraud, the plaintiff can rely upon s. 18 of the Limitation Act to escape from the bar of limitation. When Abdul Hai got the properties released by reason of the decision of the Government of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters. The existence of the right of the appellant was kept concealed by Abdul Hai. The appellant was not aware of the right nor could he have with reasonable diligence discovered it. There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khankah having full knowledge of the fact. It was only in 1941 that the appellant came to know of the Matrooka character of the properties. [745 E, 746 E] Rolfe v. Gregory, [1964] 4 DeG. J & S 576, Boman Chandra Datta v. Promotha Nath Ghose, L.L.R. 49 Cal. 886 and Rahimboy v. Turner, 20 I.A. 1. referred to. (vi) On the facts of the case it was established that the fraud committed by Abdul Hai relates “to matters which prima facie would be a reason for setting the judgment aside”. [747 E-F] Halsbury’s Laws of England, Third Edition, Vol. 22, para 1669 at p. 790. referred to. (vii) The plea of adverse possession must also fail. It was apparent that until the year 1927 the appellant and the other parties were already kept out of the knowledge of the true character of the properties. Even after 1927 it could not be said on the evidence On record that the appellant had any knowledge of the true character of the properties or of ouster or adverse possession of Abdul Hai. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-oweners and the possession is in hostility to co-owners by exclusion of them. In the present case there was no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them. [745 F-H] =1971 AIR 2184, 1971( 3 )SCR 734, , ,

SYED SHAH GHULAM GHOUSE MOHIUDDIN AND ORS. Vs.RESPONDENT:SYED SHAH AHMED MORIUDDIN KAMISUL QUADRI(DEAD) BY L. Rs. ANDATE OF JUDGMENT17/02/1971BENCH:RAY, A.N.BENCH:RAY, A.N.MITTER, G.K.CITATION: 1971 AIR 2184 1971 SCR (3) 734ACT:Minority and Guardianship-Muslim minor represented inarbitration proceedings and in Court by brother who was notappointed guardian by Court-Award and decree on award arevitiated.Limitation Act, 1908, ss. 18 and 144-Renunciation of rightsby co-owners in property in favour of one co-owner underwrong impression that it was endowed property-Property laterdiscovered to be Matrooka property-Limitation for filingsuit is governed by s. 144 Limitation Act 1908-Whereknowledge of right to partition is held back by fraudlimitation is extended under s. 18.Adverse possession-Possession by one co-owner is not byitself adverse to other co-owners-These must be open denialof title to the parties entitled to the property byexcluding and ousting them-Possession is not adverse toparties not aware of their rights.HEADNOTE:Shah Abdul Rahim was Sajjadanasheen of a Dargah and Khankahin Hyderabad. He had four sons and two daughters. Afterhis death in 1905 he was succeeded as Sajjadanasheen by hiseldest son Abdul Hai Shah Abdur Rahim left Matrooka propertyapart from the properties appertaining to the Dargah andKhankah. The matter of the partition of Matrooka propertieswas referred to arbitrators. The appellant who was AbdurRahim's youngest son was a minor at the time and wasrepresented in the arbitration proceeding by his brotherNooruddin. The properties Exhibits B-1 to B-10 wereacknowledged by the parties before arbitrators to be in thepossession of Abdul Hai as Dargah and Khankah properties andany right or claim to them was renounced by Abdul Hai'sbrothers and sisters. The arbitrators gave their award onAugust 1, 1908 partitioning the properties. On August 13,1908 there was a decree in the Darul Khaza Court confirmingthe aforesaid award. The properties B-1 to B-10 thereafterremained in the possession of Abdul Hai. In 1927 Abdul Haigot an adjudication from the Nizam's Government that theDargah and Khankah properties consisted only of two villagesand that properties B-1 to B-10 were not Dargah and Khankahproperties. In 1938 Abdul Hai wrote a letter to the Nizam'sgovernment again asserting that properties B-1 to B-10 werehis personal properties. The appellant filed a suit on 24thJuly 1941 for setting aside the decree dated. August 13,1908, passed by the Darul Khaza Court and for partition ofthe Matrooka properties left by his father includingproperties B-1 to B-10. He impeached the award and thedecree on the ground that he was not represented by 1 lawfulguardian. He claimed that the award and decree should beavoided because they were based on the wrongfulrepresentation of Abdul Hai that they were Dargah andKhankah properties. The trial court decreed the suitholding : (1) that the award and decree in question wereobtained by fraud; (2) that the letter written by Abdul Haiin 1938 showed that he was aware of the Matrooka characterof the properties but kept this fact from his brothers andsisters; (3) that the appellant73 5came to know the facts from the said letter of 1938 and thesuit was not therefore barred by limitation. The High Courtin appeal held (1) that the appellant was a minor andtherefore reference to the arbitration and the award thereonwere void; (2) that the decree passed by the Damlkhaza Courtwas not a nullity since the appellant did not file his suitwithin three years after attaining majority; (3) that thedecree was not obtained by fraud; (4) that Abdul Haiasserted in 1927 that the properties in question were hispersonal properties and this assertion of title adverse tothe appellant and his brothers and sisters became known tothem in 1927 and for this reason also the suit was barred bylimitation. in' appeal by certificate to this Court,HELD: The appeal must be allowed,(i) The minority of the appellant was a fact found by thetrial court and the High Court. The appellant's brother whorepresented him in the arbitration and court proceedings wasnot a legal guardian, nor was he appointed by the Court.The relinquishment of property by Nooruddin on behalf of theminor was not binding on the minor whose interests were notprotected. The arbitration proceedings, the award and thedecree of the Darul Khaza Court on the award were thereforevoid. [740 D, 741 E-F]Mohd. Amin & Ors. v. Vakil Ahmed & Ors, [1952] S.C.R. 1133and Imambandi v. Mutsaddi, 45 I.A. 73, referred to.'(ii) The estate' of a deceased Mohammedan devolves on hisheirs at the moment of his death. The heirs succeed to theestate as tenants in common in specific shares. When theheirs continue to hold-the estate as tenants in commonwithout dividing it and one of them subsequently brings asuit for recovery of the share the period of limitation forthe suit does not run against him from the date of the deathof the deceased but from the date of express ouster ordenial of title and Art. 114 of Sch. 1 to the LimitationAct 1908 would be the relevant Article.[741 H, 742 A](iii) The cause of action for partition of properties isa perpetually recurring one'. In Mohammedan Law thedoctrine of partial partition is not applicable because theheirs are tenants in common and the heirs of the deceasedMuslim succeed to the definite fraction of every part of hisestate. In the present case the suit was for partition ofproperties which were by consent of parties treated asDargah and Khankah but which were later discovered to beMatrooka properties in fact and therefore the declaration inthe award and the decree on the award that those were Dargahand Khankah properties could not stand and the entirepartition had to be reopened by reason of fraud in theearlier proceedings. [746 G-747 B]Monsharam Chakravarty & Ors. v. Gonesh Chandra Chakravarty &Ors., 17 C.W.N. 521, referred to.(iv) The decree of the Darul Khaza Court could not be anobstacle to, the claim of the appellant for partition of theproperties, because the properties were admittedly notDargah and Khankah properties but Matrooka Properties. Ifall parties- proceeded upon a basis that these , were Dargahand Khankah properties and that basis is wiped out by theadjudication by the Government of the Nizam, the parties arerestored to their position as heirs to the Matrookaproperty. The award and the decree by reason of evidence offacts discovered since the judgment and the decree of theDarul Khaza Court could not be allowed to stand because theeffect of the discovery of the facts was to make it "reason-ably probable that the action will succeed". [744 H-745 B]1100Sup CI/7273 6Birch v. Birch, [1902] Probate Division 131, referred to.(v) When a plaintiff has been kept from knowledge by thedependent of the circumstances constituting the fraud, theplaintiff can rely upon s. 18 of the Limitation Act toescape from the bar of limitation. When Abdul Hai got theproperties released by reason of the decision of theGovernment of the Nizam in the year 1927 the propertiesbecame divisible among the appellant and his brothers andsisters. The existence of the right of the appellant waskept concealed by Abdul Hai. The appellant was not aware ofthe right nor could he have with reasonable diligencediscovered it. There was active concealment by Abdul Hai ofthe fact that the properties were not Dargah and Khankahhaving full knowledge of the fact. It was only in 1941 thatthe appellant came to know of the Matrooka character of theproperties. [745 E, 746 E]Rolfe v. Gregory, [1964] 4 DeG. J & S 576, Boman ChandraDatta v. Promotha Nath Ghose, L.L.R. 49 Cal. 886 andRahimboy v. Turner, 20 I.A. 1. referred to.(vi) On the facts of the case it was established that thefraud committed by Abdul Hai relates "to matters which primafacie would be a reason for setting the judgment aside".[747 E-F]Halsbury's Laws of England, Third Edition, Vol. 22, para1669 at p. 790. referred to.(vii) The plea of adverse possession must also fail.It was apparent that until the year 1927 the appellant andthe other parties were already kept out of the knowledge ofthe true character of the properties. Even after 1927 itcould not be said on the evidence On record that theappellant had any knowledge of the true character of theproperties or of ouster or adverse possession of Abdul Hai.Possession by one co-owner is not by itself adverse to otherco-owners. On the contrary possession by one co-owner ispresumed to be the possession of all the co-owners unless itis established that the possession of the co-owner is indenial of title of co-oweners and the possession is inhostility to co-owners by exclusion of them. In the presentcase there was no evidence to support this conclusion.Ouster is an unequivocal act of assertion of title. Therehas to be open denial of title to the parties who areentitled to it by excluding and ousting them. [745 F-H]JUDGMENT:CIVIL APPELLATE JURISDICTION: Civil Appeal No. 219 of 1967.Appeal from the judgment and decree dated December 16, 1965of the Andhra Pradesh High Court in C.C-C. Appeal No. 24 of1969.M. C. Chagla, R. Y. Pillai and N. Nettar, for theappellants.C. K. Daphtary, Rameshwar Nath and Swaranjit Sodhi, forrespondent No. 1 (A).V. A. Seyid Muhammad and S. P. Nayar, for respondent No.3.7 3 7The Judgment of the Court was delivered byRay, J.-This is an appeal by certificate against the judge-ment dated 15 December, 1965 of the Andhra Pradesh HighCourt dismissing the appellants' suit and setting aside, thedecree in favour of the appellant passed by the AdditionalChief Judge, City Civil Court, Hyderabad on 18 October,1958.Shah Abdul Rahim a resident of the pity of Hyderabad died on26 September, 1905 leaving behind him four sons Abdul Hai,Ghulam Nooruddin, Abdul Razak and Ghulam Ghouse Mohiuddinand two daughters Kamarunnissa Begum and Badiunnissa Begum.Shah Abdul Rahim had large movable and immovable properties.'Me sons and the daughters entered into two agreements inthe month of July, 1908 and appointed arbitrators topartition the Matrooka properties of Syed Shah Abdul Rahim.On 1 August, 1908 the arbitrators made an Awardpartitioning, the properties. On 13 August, 190 8 there wasa decree in the Darul Khaza Court, Hyderabad confirming theAward of 1 August, 1908. The appellant filed the suit outof which the appeal arises on 24 July, 1941 for settingaside the decree dated 13 August, 1908 confirming the awardand for partitioning certain Matrooka properties. In 1942,the suit was dismissed. An.. appeal was preferred to theHigh Court of Hyderabad. During the pendency of the appealAbdul Hai died in 1950 and his legal representatives werebrought on the record of the suit in the month of February,1952. The appeal filed in the year 1943 was disposed of bythe High Court of Andhra Pradesh in April 1957 remanding thecase to the City Civil Court, Hyderabad. On 18 October,1958 the Additional Chief Judge, City Civil Court, Hyderabaddecreed the suit in favour of the appellant and cancelledthe decree of the Darul Khaza Court dated 13 August, 1908.On appeal the Andhra Pradesh High Court on 15 December, 1965set aside the decree passed by the Additional Chief Judge.The undisputed facts are these When Abdul Rahim died in 1905Abdul Hai the eldest son was major. The appellant was aminor. There were two references to arbitration . Beforethe arbitrators the appellant a minor was represented by hisbrother Ghulam Nooruddin as the guardian. The parties tothe arbitration agreements were Abdul Hai, Ghulam Nooruddin,Abdul Razak the appellant represented by his guardianNooruddin, Qamarunnissa Begum and Badiunnisa Begum. It willappear from the award that before the arbitrators there wasno dispute ,between the parties and the arbitrators did notthink it necessary to frame any issues. Before thearbitrators the plaintiffs marked738with the letter 'F' a plan showing properties attached tothe Khankah and Dargah and those properties were market asExhibits B-1 to B-10 and the plaintiffs relinquished theirtitle-to properties marked Exhibits B-1 to B-10 and furtherstated "neither at present nor in future will they have anyshare and right in the said property". As to propertiesmarked B-1 to B-10 the parties stated ,before thearbitrators that Abdul Hai was the Sajjada Nashin of theDargah and was in possession of, the Dargah and khankahproperties.The award was made a rule of court within a short time upona plaint filed by Nooruddin, Abdul Razak, the appellantrepresented by Nooruddin as the guardian and the two sistersQamarunnisa Begum and Badiunnisa Begum. The defendant wasAbdul Hai. The facts recited in the decree are these. SyedShah Nooruddin a pious person of Hyderabad had his Khankahsituated at Nampalli. The Dargah of the said pious man wasalso situated in the same locality. After Syed ShahNooruddin's death his son-in-law, Abdur Rahim became theSajjada of the Khankah and the Dargah Shariff. The Sajjadahad control over all the expenses ,of the Dargah and Khankahand the entire property attached to the Dargah and Khankahremained in possession of the Sajjadana,sheen and all theexpenses of the Dargah and Khankah were met from the income.After the death of Abdur Rahim, Abdul Hai became theSajjadanasheen and was having control over the Dargah andKhankah. Abdur Rahim left three adult sons and one minorson and also two adult daughters. Apart from the propertyattached to the Dargah and Khankah Abdur Rahim left personalMatrooka properties. There might have been a disputebetween the parties regarding the partition of theseproperties. But the parties settled the dispute by mutualconsent and by agreement referred the matter to arbitrationfor the settlement of the dispute. 'The arbitrators made anaward. The decree recited that the properties marked withthe letter 'F' in the plan annexed to the award were Khankahand Dargah Shariff properties in the possession of thedefendant Abdul Hai for meeting the expenses of the Khankahand no one has any right or claim over the property 'atpresent' or 'in future. The decree concluded by statingthat the bargah and Khankah properties were not liable topartition and none ,of the plaintiffs "shall have any rightor claim regarding the same".The appellant impeached the award and the decree upon theaward inter alia on the grounds that the award was void byreason of lack of lawful guardian on behalf of the appellantto protect ,and represent the rights and interests of theminor in the arbitration proceedings and in the proceedingsresulting in the decree upon the award. The appellant alsoclaimed that the award and 739the decree should be avoided because the properties markedExhibits B-1 to B-10 were not Dargah and Khankah propertiesin fact and were treated in the award and the decree to beDargah and Khankah on the wrongful representation of AbdulHai. The, appellant in the year 1938 discovered for thefirst time the true and correct facts that the same were notKhankah and Dargah properties and therefore claimed the sameas divisible upon partition amongst the heirs of AbdulRahim.The trial Court held that the award and the decree thereonwere obtained by fraud and the decree was to be set aside.The reasoning given by the trial Court was that it wasestablished one the evidence that Abdul Hai was in fullpossession and enjoyment of the whole of the property ofAbdul Rahim including the property marked as Exhibits B-1 toB-10. In the letter dated 13, August, 1938 Exhibit P-8Abdul Hai denied that the property was waqf propertybelonging to the Dargah and asserted that it was. owned andpossessed by him and relinquished by his relatives. Theletter was held by the trial Court to indicate that AbdulHai knew that the property was the property of his fatherwhich be inherited along with his brothers and sisters andin spite of such knowledge and belief he caused it to berepresnted before the arbitrators that the property belongedto the Dargali and that the same was in his possession asSajjadanasheen. The trial Court further held that theappellant came to know the real state of affairs from theletter of, Abdul Hai dated 13 August, 1938 and therefore thesuit was not barred by limitation. The trial Courttherefore passed a decree for cancellation of the decreepassed upon the award and passed a preliminary decree forpartition of' the Matrooka properties including theproperties marked as. Exhibits B-1 to B-10 in the award.In the High Court four questions were considered. First,whether apart from the appellant any other party was a minorat the time of the arbitration agreement and whether therewas a dispute which could be referred to arbitration.Second, whether there was proof that at the time of thearbitration agreement and the award Abdul Hai made afraudulent and false representation to his brothers andsisters and made Them believe that the properties belongingto the Sajjadanasheen were the properties of Dargah andKhankah which were not partible and by representation andfraud prevented the partition of those properties. Third,whether the appellant had knowledge that Abdul Hai hadclaimed the properties as the ancestral properties of theSajjadanasheen earlier than the time when the appellant saidhe had knowledge and whether the suit was barred bylimitation. Fourth, what would be the effect of the filingof the written statement by the defendant740No. 6 in the year 1958 and the omission of defendant No. 7to Me any written statement to obtain partition of theproperties-in the event of the decree and the award beingset asideThe High Court held that the appellant was a minor but the,other parties were not minors. The High Court Held thatthe reference to the arbitration and the a ward thereon werevoid The High Court held that the decree of the Darul KhazaCourt upon the award was not a nullity and the present suitshould have been filed within three years of the appellantobtaining majority. The High Court also held that thedecree of the Darul Khaza Court was not obtained by fraud.'Me High Court held that Abdul Hai ,asserted in the year1927 that the Dargah and the Khankah properties were hispersonal properties and from that date Abdul Hai assertedhis title adverse to the appellant and the other plaintiffsand the appellant and the other plaintiffs knew in 1927 ofthe adverse claim of Abdul Hai. Therefore, the suit wasbarred by limitation.The minority of the appellant is a fact found both by thetrial ,Court and the High Court. It is an admitted factthat the appellant's guardian was his brother Nooruddin atthe time of the arbitration proceedings and at the time ofthe decree on the award. The brother is not a lawfulguardian under the Mohammedan Law. The legal guardians arethe father, the executor appointed by the fathers will, thefathers father and the executor appointed by the will of thefather's father. No other relation is entitled to theguardianship of the property of a minor as of right.Neither the mother nor the brother is a lawful guardianthough the father ,or the paternal grand father of the minormay appoint the mother, brother or any other person asexecutor or executrix. In default ,of legal guardians aduty of appointing guardian for the protection andpreservation of the minor's property is of the court onproper application. It was held by this Court in Mohd.Amin & Ors. v. Vakil Ahmed & Ors.(1) relying on the dictumin Imambandi v. Mutsaddi(2) that where disputes aroserelating to succession to the estate of a deceasedMohammedan between his three sons, one of whom was a minor,and other relations, and a deed of settlement embodying anagreement in regard to the distribution of the propertiesbelonging to the estate was executed by and between theparties, the eldest son acting as guardian for and on behalfof the minor son the deed was not binding on the minor sonas his brother was not his legal guardian and the deed wasvoid not only qua the minor, but with regard to all theparties including those who were sui juris. It is clear onthe authority of this decision that the arbitrationagreement and the award and the decree(1) [1952] S.C.R. 1133.(2) 45 T.A. 73741are all void in the present case by reason of lack of legalguardian of the appellant. There is intrinsic evidence inthe award, that the parties effected a settlement.Counsel on behalf of the respondent relied on a copy of anapplication in the Court of the Darul Khaza in theproceedings for passing the decree upon the, award insupport of the contention that the court appointed Nooruddinas the guardian of the appellant. It is stated in theapplication that the defendant No. 3 (sic) meaning therebyplaintiff No. 3 the present appellant is a minor andNooruddin is the real brother and the appellant is under theguardianship of Nooruddin. The application was forpermission to Me the suit. There is no order forappointment of a guardian. Further, the Court in appointingthe guardian of property of a minor is guided bycircumstances for the welfare of the minor. There is nojustification to hold that Nooruddin was either "the legalguardian or a guardian appointed by the Court.The decree which was passed on the award appears on anexamination of the pleadings and the decree itself that theparties proceeded to have the decree on the basis of theaward without any contest as and by way of mutualsettlement. It will, appear from the decree that it wasadmitted by the parties that Abdul Hai was in possession ofthe Dargah and Khankah and that Abdul Hai alone was theSajjadanasheen of the Khankah. The relinquishment ofproperty by Nooruddin on behalf of the minor is not bindingon the minor. There was no legal sanction 'behild suchcompromise in the arbitration and in the proceedings result-ing in a decree upon the award. There was no legalguardian. The rights and interests of the minor were alsonot protected particularly when there was conflict ofinterest between the minor and Abdul Hai. The arbitrationagreement, the award and the decree of the Daral Khaza Courton the award are therefore void.The High Court held that the appellants suit was barred bylimitation by reason of knowledge of the appellant thatAbdul Hai was in adverse possession since the year 1927 or1928. In regard to the properties which the appellantclaimed in the suit as liable to partition, it isestablished that all parties proceeded on the basis thatExhibits B-1 to B-10 in the award were not Matrooka pro-perties but Dargah and Khankah properties. If, in fact,they are not Dargah and Khankah properties but Matrookaproperties, these should be available to co-owners forpartition unless there are legal impediments. The estate ofa deceased Mohamedan devolves on his heirs at the moment ofhis' death. The heirs succeed to the estate as tenants incommon in specific shares. Where the heirs continue to holdthe estate as tenants in common without742dividing it and on of them subsequently brings a suit forrecovery of the share the period of limitation for the suitdoes not run against him from the date of the death of thedeceased but from the date of express ouster or denial oftitle and Article 144 of Schedule 1 to the Limitation Act,1908 would be the relevant Article.Counsel on behalf of the respondent submitted that therewere two impediments to the appellant's claim for partitionof the properties. One was that the decree passed by theCourt of Darul Khaza upon the award was not obtained byfraud and could not be set aside by reason of limitation.The other was that the appellant came to know in the year1927 that Abdul Hai adversely claimed properties as his ownand therefore the appellant's claim was barred bylimitation. The High Court held that the appellant wasaware of the attachment of the personal and the Dargah andKhankah properties by the Government of the Nizam in theyear 1927 as also release in the same year of the propertiesattached. The High Court had that when parties hadknowledge of the attachment of the properties it could notbe postulated that they would have no knowledge of thecontentions of Abdul Hai as to release of the Dargah andKhankah properties on the ground that those were not Dargahand Khankah but personal properties of Abdul Hai. Knowledgeof release of properties would not amount to ouster of theappellant from the property or of abandonment of rights.The evidence of the appellant was that in 1350 Fasli corres-ponding to the year 1941 the appellant came to know that aletter had been written by Abdul Hai to the EcclesiasticalDepartment of the Government of the Nizam in the year 1938to the effect that the properties shown as Dargah andKhankah in the award F. and the decree were not Dargah andKhankar properties. The appellant also came to know fromthe same letter that all the properties including thosestated to be Dargah and Khankah properties in the award wereattached by the Government of Nizam in the year 1927 andafter enquiry by the Government of the Nizam all theproperties were :released in the year 1927. The appellantfurther came to know from that letter that Abdul Hai claimedthe properties as his own. Thereupon the appellant demandedfrom Abdul Hai partition of the property as Matrooka. AbdulHai asked the appellant to consult lawyer.On the evidence it would be utterly wrong to speculate thatthe appellant knew of the contentions advanced in 1927 byAbdul Hai for the release of the properties by stating thatthey were not Dargah and Khankah properties. There was nosub section at the. 743time of the examination of the appellant that he was awarein,. 1927 of the contentions of Abdul Hai. The High Courtrelied on Exhibit A-38 a letter dated 19 October, 1927written by the,, appellant to Abdul Hai to impute knowledgeof the attachment. and release of the properties. Theappellant was never confronted with at letter. it wasnever suggested to the appellant that the letter could beconstrued as attributing to the appellant the knowledge ofany adverse claim made by Abdul Hai with" regard to theproperties. In that letter the appellant stated that. bewas indebted to the elder brother Abdul Hai for hiskindness... The appellant also stated that the expenditureincurred in connection with the litigation would be dividedinto four parts and the amount incurred on behalf of theappellant could be recovered from his account. This letterdated 19 October, 1927 does not at all have the effect ofestablishing that the appellant had knowledge of any adverseclaim of the appellant. The appellant was never shown theletter to explain what litigation he referred to. Noinference can be drawn against the appellant without givinghim an opportunity to have his say in that matter. It isunfortunate that Abdul Hai died during the pendency of thesuit and before the, trial. Not only his oral evidence butalso the correspondence that Abdul Hai had with theGovernment of the Nizam in the year 1927 did not find wayinto the record of the suit. It would be totally misreadingthe appellant's letter of the, year 1927 as impressing theappellant with the knowledge of' ouster by Abdul Hai of theappellant from the properties forming the subject matter ofthe suit.There are two letter of great importance. One is dated 13August, 1938 and marked Exhibit P-8 written by Abdul Hai to,the Director of Endowment, Government of Hyderabad and theother is dated 7 September, 1938 written by theEcclesiastical Department of the Government of Hyderabad tothe Secretary of the Endowments, Ecclesiastical Departmentof the Government of' Hyderabad. The letter of Abdul Haiwas written in answer to an application made about that timeto the Government of the Nizam by One Sheikh Abdur Rahim atenant against whom Abdul Hai bad filed a suit for recoveryof rent. Abdur Rahim made an allegation that the propertiesin respect of which Abdur Hai filed a suit were Dargah andKhankah properties. The complaint of Abdur Rahim washowever dismissed and the matter was not allowed to bereopened on the strength of the orders of the Governmentrecited by Abdul Hai in, his letter. In answer Abdul Hairecorded these facts. The Nizaim in the month of April,1927 appointed the Secretary of the EcclesiasticalDepartment and the Commissioner of Police to enquire andreport as to which of the properties were attached to theDargah and which were per-744sonal private properties. Another Commission was appointedby the Nizam to enquire into the proper use of the endowedproperties. The Ecclesiastical Department by Letter dated28 December, 1927 held that only the villages Debser andSangvi were found to be under the Dargah. All properties ofthe parties which had been attached by the Nizam werereleased by letter dated 3 January, 1928 excepting the twovillages. Abdul,Hai by letter dated 16 January, 1928 to theGovernment of the Nizam stated that the properties markedExhibits B-1 to B-10 in the award and the decree of theCourt of Darul Khaza did not belong to the Dargah andKhankah. Abdul Hai further pointed out that the Nizam by afirman dated 11 November, 1927 had issued orders ,sayingthat according to the opinion of the Council the Govern-ment's supervision should be lifted from the 'maash'referring thereby to the properties which had been attachedby the Nizam and the same should be given over into thepossession of Abdul 'Hai.The other letter dated 5 January, 1939 from the Government,of the Nizam stated that only two villages were held to beDargah and the Government of the Nizam had made thoroughenquiries and held that there was no other Dargah andKhankah properties and the question could not be re-opened.It is established in evidence that the properties which wore,described as. Dargah and Khankah properties before thearbitrators and the decree of the Darul Khaza Court are notDargah and Khankah properties. Abdul Hai obtained anadjudication and an order of the Government of the Nizam inthe year 1927 that only two villages of Debser and Sangvibelonged to the Dargah and the rest were not Dargah andKhankah properties. The appellant knew that there waslitigation about the year 1927 about the properties. It isnot in evidence as to what that litigation was or whichproperties were concerned there with because the letter wasnot shown to the appellant. Even if it be assumed that allparties treated the properties marked Exhibits B-1 to B-10as Dargah properties upto the year 1927 and thereafter therewas an adjudication on the representation of Abdul Hai thatthe properties were not Dargah and Khankah the parties wouldbe entitled to tile same. The only way in which the partiescould lose their rights to the property would be on thefinding that there was adverse possession or ouster.The decree of the Darul Khaza Court will not be an obstacleto the claim of the appellant for partition, of theproperties, because the properties are admittedly not Dargahand Khankah properties but Matrooka properties. Thearbitration proceedings were void by reason of lack of legalguardian of the appellant to enter into 745a compromise. The decree of the Darul Khaza Court is alsoinvalid and not binding on the appellant for the samereason. If all parties proceeded upon a basis that thesewere Dargah and Khankah properties and that basis is wipedout by the Government of the Nizam the, parties to theirposition as heirs to the Matrooka property. The award andthe decree by reason of evidence of facts discovered sincethe judgement and the decree of the Darul Khaza Court cannotbe allowed to stand because the effect of the discovery ofthe facts is to make it "reasonably probable that the actionwill succeed. In Birth v. Birch(1) the Court of Appeal heldthat a judgment will be set aside on the ground of fraud ifevidence of facts discovered since the judgment raise areasonable probability of the success of the action. Theprinciple can be stated in the words of Westbury, L.C. inRolfe v. Gregory(2) "when the remedy is given on the groundof fraud, it is governed by this important principle, thatthe right of the party `defrauded is not affected bylapse--of time, or generally speaking by anything done oromitted to be done so long as he, remains, without any faultof his own, in ignorance of the fraud that has beencommitted . This decision was referred to by the CalcuttaHigh Court in Biman Chandra Datta v. Promotha Nath Ghose(3)where the dictum of Westbury, L.C. was restated by holdingthat where a plaintiff had been kept from knowledge, by thedefendant, of the circumstances constituting the fraud, theplaintiff could rely upon section 18 of the Limitation Actto escape from the bar of limitation. In the present case,it is apparent that until the year 1927 the appellant andthe other parties were clearly kept out of the knowledge ofthe true character of the properties. Even after 1927 itcannot be said on the evidence on record that the appellanthad any knowledge of the true character of the properties orouster or adverse possession of Abdul Hai. The reasons arethat Abdul Hai never alleged against the appellant and theother parties openly that he was enjoying the properties tothe total exclusion of the appellant and the other brothers.Possession by one co-owner is not by itself adverse to otherco-owners. On the contrary, possession by one co-owner ispresumed to be the possession of all the co-owners unless itis established that the possession of the co-owner is indenial of title of co-owners and the possession is inhostility to co-owners by exclusion of them. In the presentthere is no case to evidence to supportthis conclusion. Ouster is an unequivocal act of assertionof title. There has to be open denial of title to theparties who are entitled to it by excluding and oustingthem.(1) 1902 Probate Division 131 (2) [18 64] 4 DeG. J.& S. 576(3) I.L.R. 49 Cal. 886746Section 18 of the Limitation Act, 1908 provides that when aperson having a right to institute a suit has by means offraud been kept from the knowledge of such right or of thetitle on which it is founded, the time limited forinstituting a suit against the person guilty of the fraudshall be computed from the time when the fraud first becameknown to the person affected thereby. In Rahim boy v.Turner(1) Lord Hobliouse said "When a man has committed afraud and has got property thereby it is for him to showthat the person injured by his fraud and suing to recoverthe property has had clear and definite knowledge of thosefacts which constitute the fraud, at a time which is tooremote to allow him to bring the suit". Therefore if theplaintiff desires to invoke the aid of section 18 of theLimitation Act he must establish that there has been fraudand that by means of such fraud he has been kept from theknowledge,of his right to sue or of the title whereon it isfounded. In the present case, he have with reasonablediligence discovered it. There was active properties wereMatrooka and not Dargah and Khankah. When Abdul Hai got theproperties released by reason of the decision of theGovernment of the Nizam in the year 1927 the propertiesbecame divisible among the appellant and his brothers andsisters. The existence of the right of the appellant waskept concealed by Abdul Hai. The appellant was not aware ofthe right nor could lie have with reasonable diligencediscovered it. There was active concealment by Abdul Hai ofthe fact that the properties were not Dargah and Khankahhaving full knowledge of the fact. It was only in 1941(1350 Fasli) that the appellant came to know of the Matrookacharacter of the properties. It was then that the appellantalso came to know that Abdul Hai had kept the character ofproperties concealed from the parties and entirely misstatedand misrepresented the character of the properties by mis-leadin the parties and obtaining by consent an award and adecree thereon without any contest.The cause of action for partition of properties is said tobe a perpetually recurring one" See Monsharam Chak-ravarty &Ors. v. Gonesh Chandra Chakravarty & Ors. (2). InMohammedan Law the doctrine of partial partition is notapplicable because the heirs are tenants-in-common and theheirs of the deceased Muslim succeed to the definitefraction of every part of his estate. The share,,, of heirsunder Mohamedan Law are definite and known before actualpartition. Therefore on partition of properties belongingto a deceased Muslim there is division by metes and boundsin accordance with the specific share of each heir beingalready determined by the law.(1) 20 I.A.1 (2) 17 C.W.N.521747In the present case the suit is for partition of propertieswhich were by consent of parties treated as Dargah andKhankah but which were later discovered to be Matrookaproperties in fact and therefore the declaration in theaward and the decree on the award that those were Dargah andKhankah properties cannot stand and the entire partition isto be lie-opened by reason of fraud in the earlierproceedings.In the present case, the overwhelming evidence is thatbecause of the representation of Abdul Hai that he was theSajjadanasheen and the properties marked Exhibits B-1 to B-10 were Dargah and Khankah properties, that all the partiestreated the properties as Dargah and Khankah before thearbitrators and in the decree upon the award. The very factthat there was never any contest indicates that thecompromise and settlement between the parties was on thebasis that the properties were Dargah and Khankah. It wasabsolutely within the knowledge of Abdul Hai as to what thetrue character of the properties was. The other parties didnot have any opportunity of knowing the same. Abdul Haiknew the real character, concealed the true character andsuggested a different character and thereby mislead all theparties. Again, when Abdul Hai approached the Government ofthe Nizam and got the properties released by asserting thatthey were not Dargah and Khankah properties in the year1927. Abdul Hai did not inform the same to any of theparties. The unmistakable intention of Abdul Hai all alongwas to enjoy the properties by stating these to be Dargahand Khankah. When the parties came to know the realcharacter of the properties even then Abdul Hai was notwilling to have partition. On these facts it is establishedthat the fraud committed by Abdul Hai relates "to matterswhich prima facie would be a reason for setting the judgmentaside". That is the statement of law in Halsbury's Laws ofEngland, Third Edition, Volume 22, paragraph 1669 at page790.For these reasons we accept the appeal and set aside thejudgment of the High Court and restore the judgment anddecree of the trial court. The appellant will be entitledto costs of this Court. The parties will pay and bear theirown costs in the High Court.G.C Appeal allowed.748